Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Merpel, Jeremy Phillips, Eleonora Rosati, Nicola Searle, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here

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Friday, 28 March 2014

Merpel was looking forward to a day curling up under the late March sunshine in Lincoln's Inn Fields, but the IPKat has sent her once again to investigate and report the latest news of the worker unrest at the European Patent Office.

Merpel has already reported on the issues at some length here and here, and both posts have attracted a considerable number of comments. Now Merpel has been informed that the EPO figures for the number of people observing the strike were 1,706 people on strike on Friday, 883 on Monday and 994 on Tuesday. This is of course rather less than the 3,697 people who voted for strike action. There seem to be two reasons for this. One is that, as reported in the previous post, Examiners were not going to disrupt public functions such as Oral Proceedings. The other is that, whereas a "yes" vote is secret, striking itself is a rather public act, which some EPO employees may have thought less than career-enhancing.

Moreover yesterday, on Thursday 27 March, EPO employees staged a demonstration at noon in front of the Isar building. Despite frantic googling, Merpel has been unable to find detailed news of this. Did the crowds cross the Ludwigsbrücke? Did they storm the Museumsinsel? We do not know. But she has heard that police estimate the number at around 600, while unofficial estimates may be up to 1,000.

The IPKat does not know enough about the details of the dispute to suggest to the blog readership what they should think, and as a fictional feline his opinions matter little in any case. But he does have some observations, and some further news to share.

It is indisputable that working relations between the President of the EPO and a majority of workers are highly strained

On the other hand, it has been generally agreed for many years that the EPO is in need of some considerable reform. As an extraterritorial organisation, the usual methods of control and oversight are absent. Therefore reform is particularly challenging.

On yet another hand, the usual guarantees of worker rights are also absent because delays at the ILO-AT mean that there is no effective appeal process against unfair dismissal.

On the final hand (luckily the IPKat has four paws), without trust and cooperation between the President and the Employees, successful reform seems highly unlikely.

But, the IPKat hears you cry, what of the Administrative Council? This is made up of independent members from each of the Contracting States, representing the patent office of each. The Administrative Council is there to exercise oversight over the President and the EPO administration, and also it is the Council, not the President directly, that makes so many of the rules complained of.

Well, this is where it gets complicated. Doubtless the President will consider that the fact the Administrative Council is passing many of the reforms complained of demonstrates that it approves of his conduct. Critics of the President point to a different fact, that, on reflection, puts the Administrative Council in a rather difficult (and some say hopelessly compromised) position. The Administrative Council is made up of representatives of national patent offices that are themselves highly reliant on fee income that ultimately derives from the EPO. So as long as the money keeps rolling, they will be encouraged to give the President free rein. The IPKat does not know whether this explains matters, but can see the force of the logic.

Against this background of mistrust, some further news becomes highly relevant. Readers will recall that one of the original PEACES complaints was the new strike regulations in Circular 347, that (apparently -- Merpel has not seen the full document) made it the administration, not the Union or other separate staff body, that conducts strike ballots and determines whether a strike is to be permitted. The "50 email" rule was reportedly developed to prevent unofficial mass communication. Well, now further Circulars are being considered by the Administrative Council that will further decrease the independence of staff representation on the proposed new Staff Committee. The nominations and elections are to be run by the Office, and the nomination provisions state "The President, upon proposal of the Supervisory Committee, shall reject all nominations which do not meet the conditions laid down in the applicable provisions or in the notice of elections..." Thus the administration and the President are intimately involved in the process, which EPO employees says undermines its independence.

In a further draft Circular concerning resources, while it is stated that "The Office shall make premises available to the Staff Committee to set up sufficient working space for Staff Committee members", it is then stated that "Such premises shall not be used for trade union activities". The IPKat wonders therefore where union activities are supposed to take place. Or are they to be banned entirely?

The proposed new voting system has also been criticised - for each Staff Committee (there is a Central one and a Local one at each branch of the Office) each employee gets only one vote, according to the proposal, whereas the Central Committee, for example, has 10 full and 10 alternate members. Allowing only a single vote for a multi-member election will result in highly skewed votes with less popular candidates getting in with very few votes indeed.

Many of the IPKat team represent users of the patent system. Users should be concerned about this degree of unrest.

Finally, Merpel notes that documents from Mr Battistelli repeatedly refer to "social democracy" in relation to the ongoing and proposed reforms. Can anyone tell her what it means?

As a private individual, I don't recall any organisation of which I have been an employee being a democracy. Democracies are for states which exist to serve their citizens, not for institutions, which exist to serve others.

Democracy at the EPO would really mean the applicants voting, rather than the staff. I do not know whether this would be a good thing or a bad thing...

Merpel perhaps needs to clarify that she is aware of "Social Democracy" as a political theory, but that does not seem to be the sense in which it is being used in the context of EPO reforms, for example in sentences such as "The Office proposes to reform the legal framework governing social dialogue at the Office with the aim of improving social democracy and representation of staff". Second and third comments above seem to agree that "democracy" is not usually a feature of corporate governance, even in a supranational organisation such as the EPO.

And to Anon at 13:30 thanks for the link, but it says little more than that there was a demonstration, which we knew already. So Merpel thinks that there is still need for frantic googling. Moreover, whatever search engine is used, searches for news on the topic still reveal to Merpel remarkably little news coverage out there.

It's obvious that the president Battistelli is implementing a legislation that breaches human rights. The situation at the EPO is totally desperate for the examiners. They have no access to justice (they have to wait +/- 10 years for a decision from ILO-AT). They have no access to a neutral mediation (Battistelli refused several time to get an external mediation).They cannot speak to journalist (President Battistelli can speak and give his own version to journalist, but it is forbidden for staff (even for staff representative and trade union) to speak to journalists). The right of strike is very limited and depends on the goodwill of the president Battistelli. What's funny is that the president, vice-president and the higher directors had their name on the strike ballot and were allowed to vote for or against the strike. That's explain why +/- 5% of EPO staff (in fact, the president himself, high managers & directors) vote against the strike.

The reputation of the EPO will be damaged. The examiners are working in a environment where the rules and fundamental laws are violated by the higher management.Nothing works normally around them. Obviously, it will affect the quality of their work.

To avoid any misunderstandings, the term "Social Democracy" was introduced not by demands of the EPO staff but, instead is used by the administration to describe their program. I presume they follow the time-honoured terminology adopted by some leaders who rule what they call a "Democratic Peoples Republic".

"In an interview with the "Süddeutsche Zeitung" (Wednesday), he had defended himself against criticism. 85 percent of the staff representatives are not elected. Allegations that restrict freedom and trade union work, came from a small minority of radical officers."

I remember those happy days as a worker in the 1970's and 80's in the UK when non-elected Union representatives used to bully workers for their political ideals. So all the EPO President is trying to do is to ensure that the workforce is a Social Democracy. Who could argue with that other than a politicised Union representative? Power to the people through me brothers!

Annonymous at 09:47....misunderstanding was not avoided as evidenced by your last sentence.

"Many of the IPKat team represent users of the patent system. Users should be concerned about this degree of unrest."

That definitely true but not all. Being a private patent professional who is married to a formal officer at the EPO, I am very concerned, privately and professionally, about the cut down on the numbers of formal officers. It is certainly correct that many of them are not employed because of their expertise but because of their language skills. But the EPO's management currently tries to replace as many formal officers as possible by computer automation and seems to have passed a lower limit ensuring smooth operation. Sure, automation is appealing to controllers but, as we all know, it is not as easy to be implemented in practice as it seems. The internal workload for correcting wrong or unfounded communications is therefore drastically increasing. That is something, what we as users should also be concerned about as well.

It is also correct that the EPO has been a "workers paradise" for many years. However, I think it is unfair to rush reforms at the expense of the employees only just for the glory of Mr. Battistelli and not for saving the EPO before bankruptcy.

Anonymous 23:41:00 I agree with you but would like to add this to your comment,if as an EPO agent, for whatever reason, you're under suspicion for having comitted a (serious) misconduct and got dismissed by the President on nothing more than suspicions than you're seriously screwed up due to the fact that there is no independent tribunal to claim your rights. You have practically no defense at all! Well, there is ILOAT but they depend financially and politically on the Organisations and it take years to get a judgment. If a judgment is given than they are seriously questionable due to the dependancy with respect to the organisations and due to the lack of oral hearings and the huge lack of law in regard to human rights. That leaves you (any EPO agent) without any rights. I know all about, since this happened to me after having worked fo almost 20 years in the EPO. The higher managment respects nothing not even their own law. ( internal codex) Btw, I was fully aquitted by the high dutch criminal court on all charges! The EPO initiated a criminal procedure by filing a complaint at the dutch police supervised by the prosecutor before my dismissal!!! The ILOAT decided against me, based purely on suspicions taken over by the EPO opinion and against the high dutch criminal court. I asked for a oral hearing at ILOAT but they refused without any solid argument.I wish good luck to my ex collegues and please go on strike and fight for your rights!

One should understand that the EPO is not to compare to the industry, it is like a state in it's own. Uncontrolled by the contracting states.

Monsieur B. has a real talent for surrounding himself with trusted and reliable assistants.

For instance, le Génie des Yvelines handpicked one of his former AC colleagues to make him VP of something or another.

This man's past landed several times in the pages of his country's press.

For instance, some bad spirits harbour doubts about the authenticity of his academic titles. (Considering the pernickety fashion in which the EPO personel department verifies the credentials of new recruits, this is more than a bit surprising).

This man is also purported to have run an association for the promotion of IP out of the premises of a café just down the street from the National IPO. It requested funding from the NPO which be an incredible coincidence also happened to be headed by the same person. (It isn't known however whether subsidies were actually granted).

There are also reports regarding an odd business with leased luxury automobiles, one of which was stored out of sight in a file archive room, and was recently rediscovered in an EPO parking lot in Munich.

I wonder how a person that headed a organisation more than negligible in size to the EPO came to occupy such a senior position. It would akin to entrusting the manager of the convenience store on the street corner with running Sainsbury's...

I have a theory that we perhaps don't fully understand what it feels like to have the kind of grievances that are in play at the EPO. It seems to me that the main problem is that the staff thinks Battistelli is doing things that would be illegal in their home countries. Normal workers would never have to strike for something like that; they would just go to court, and win or not. But the EPO is a place of lawlessness and there is no court to go to, at least not for a fair decision in a quick time.

So staff are left with nowhere to turn and feeling badly wronged. Yes, they could consider leaving, but that would be defeat, wouldn't it?

"Normal workers would never have to strike for something like that; they would just go to court, and win or not. But the EPO is a place of lawlessness and there is no court to go to, at least not for a fair decision in a quick time."

I'm very far from problems of EPO's employees but will write a few words because an interesting legal aspect is in question.

In principle, countries members of the ECHR (all EPC countries of course) have a positive obligation to protect rights of their citizens. A positive obligation means that the countries should take an initiative in protection of certain rights. Failure to take such actions leads to violation of the ECHR. (There is a case law on that.)

Since the EPO is founded by the countries which are member states of the ECHR, the EPC countries, theoretically, should ensure for EPO's employees rights of under_national_law_employees in the members states.

The EPO is an organisation created by the contract, i.e. EPC, the contract between the countries. It seems reasonable that the contract itself and all sort of implementing provisions are bound by the same obligations as separate member states, at least on essential issues.

Countries must protect the rights of their citizens in accordance with their own laws. If that country is subject to the ECHR then citizens may take action there against their government. The EPO is not subject to the jurisdiction of the ECHR and so no employee is entitled to escalate their dispute with the EPO to the ECHR.

The issue of whether they have a right to make a complaint against the state of which they are a national seems to have a couple of issues.

Firstly, I suppose we need to appreciate just how their human rights, as would be protected by the ECHR as a national of a relevant sate, have been abused by the EPO. Can anyone comment by providing the relevant article/s purportedly breached and supporting case law?

Secondly, is the resident status of an EPO employee such that the country of their nationality is obliged to protect them? i.e. Is there a country that can be held liable?

Also, if membership of the EPO occurred before a country became a party to the ECHR, and said country does not have any influence over the actions of the EPO, then how could that country be held liable today?

Should France ensure that their nationals resident abroad in another EU state are subject to French employment law? Should a French company be entitled to dismiss a British employee without recourse to any unfair dismissal procedure, because that is how they can expect to be treated back in the UK?

The EPO is certainly subject to the jurisdiction of the ECHR since the EPO is an activity of the 38 member states of the ECHR. Any activity of the EPO is an activity of 38 members states. Therefore any activity of the EPO is bound by oblications of 38 member states before the ECHR.

The EPO member states can't give to the EPO more power over their citizens than the member states have.

I'm not following the situation in all the details, but information on 'Investigation Guidelines' brings all these thoughts along ...

(It is my neutral view ... Only interesetd in legal aspects of the situation)

"Should France ensure that their nationals resident abroad in another EU state are subject to French employment law? Should a French company be entitled to dismiss a British employee without recourse to any unfair dismissal procedure, because that is how they can expect to be treated back in the UK?"

Your question is alerady answered in frameworks of the EU law and the ECHR law.

It is generally known that there are issues of national discretion and there are issues with one rule for all states.

Examples of this last category are:

Should EPC_country_citizens have right to strike?

Should EPC_country_citizens have right to express their opinions at least on the level of work unions?

One may only apply to the ECHR when all other remedies have been exhausted. In the case of a private grievance, must one wait for the full ten+X years to eventually obtain a decision, if it ever comes? Justice delayed...

I heard that some attempted to address Dutch and German national courts, with mixed results. I don't know enough details about the cases, but I understand that they must now worm their way through appeals.

For collective issues, such as the right to strike, what internal remedies are there to be exhausted? And which national stage would have to answer before the ECHR? All member states together?

The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.

But the EPO already flouts such requirements, and misuses its immunity to escape its obligations.

The Office makes a rather wide use of temp agencies in support functions, and even production ones. The tax and labour offices place limitations on such practices. Employers shouldn't be able to avoid creating permanent jobs.

I remember greeting someone with something like "see you next week". The answer came: "I won't be here next week, they're flushing us out just to make sure that we have no claim to a permanent job".

The case of an IT specialist was reported in the Süddeutsche. I don't know the outcome of her case before German courts, but if it went anywhere I think I'd heard about it.

The question about human rights or the applicability is far from academic. For instance, why should the EPO be immune to harassment problems? I am personally aware of several cases where the life of victims of mobbing became hell when the management's reaction was to gag "troublemakers".

Mr. Pompidou's was decidedly very modest, but he did introduce a policy on harassment near the end of his mandate. The ink on his signature was hardly dry when Mrs. Brimelow rescinded it, claiming that the procedure was "misused". How? Why? It was never replaced AFAIK.

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Gama and Pal: is the wet-wipe packaging confusingly similar?

Yesterday morning the IPKat posted this item on an ongoing passing-off action, Gama Healthcare Ltd v Pal International Ltd. in which Gama objected that Pal's wet-wipe packaging would lead people to think it was theirs.

When that Katpost went live, there were no examples of the parties’ packaging to show readers. The Kats have since received images of both, which they reproduce below, and they ask readers, through the medium of the sidebar poll below, if they think that Pal's packaging might be mistaken for Gama’s one.

Pal's packs are sold under the Medipal brand and Gama's are sold as Clinell products.

Caveat: this poll is conducted purely for the amusement of readers of this weblog. It is not mandated by the trial judge or commissioned by either party; it is not based on any methodology and it is not intended to have any evidential value at all.

Wet-wipe packaging: do you think you could pick up a packet of Medipal, thinking it was Clinell?

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